Bihar’s reservation conundrum: High Court ruling puts BJP, JD(U) in a tight spot

As Patna High Court invalidates Bihar’s increased reservation policy, Congress urges Centre to amend Constitution, remove 50 per cent reservation cap.

Members of the Musahar community in Gaya district of Bihar. According to the caste survey, nearly 85 per cent of the State’s population are from the OBC, EBC, and SC/ST communities. | Photo Credit: RANJEET KUMAR

The reservation issue is back to the fore in Bihar, with the Patna High Court striking down the State government’s decision to increase the percentage of reservation for the Other Backward Classes (OBCs), the Extremely Backward Classes (EBCs), the Scheduled Castes (SCs), and the Scheduled Tribes (STs) in government jobs and educational institutions to 65 from 50. The verdict could not have come at a worse time for the BJP, which is doing a tightrope walk wooing the OBCs and the SCs, as it prepares for the Assembly election due next year, while trying to maintain its core privileged-caste vote.

Acting on a public interest litigation (PIL) petition, the court on June 20 set aside the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Amendment Act, 2023, and the Bihar Reservation (in Admission to Educational Institutions) Amendment Act, 2023, as “ultra vires the Constitution” and “violative of the equality clause” under Articles 14, 15, and 16. In its 87-page judgment, the court cited the well-known Indra Sawhney case, which put a 50 per cent cap on reservation, and a number of other judgments.

Outcome of caste survey

The government’s decision to increase reservation was taken on the basis of a caste survey initiated in January 23 when Nitish Kumar was the Chief Minister in the Janata Dal (United)-Rashtriya Janata Dal-Congress (JD(U)-RJD-Congress) government; he deserted the alliance to join hands with the BJP ahead of the Lok Sabha election this year but remains Chief Minister. According to the caste survey, nearly 85 per cent of the State’s population are from the OBC, EBC, and SC/ST communities. The EBCs alone account to 36.1 per cent.

The government raised the quota for EBCs to 25 per cent (from 18 per cent), for Backward Classes to 18 per cent (12 per cent), for the SCs to 20 per cent (16 per cent), and for the STs to 2 per cent (1 per cent). In addition to this is the 10 per cent reservation for the Economically Weaker Sections (EWS), taking the total reservation in Bihar to 75 per cent.

The High Court said the State had done no in-depth study or analysis before increasing the reservation percentage. It said that proceeding merely on the proportion of population of different categories as against their numerical representation in government services and educational institutions worked against the core principles of Articles 15(4) & 16(4). “In our judgment hence, the enhancement of reservation beyond the 50 per cent limit is bad in law based on the principles of equality emanating from the Constitution,” the court observed.

The Congress went on an offensive against Nitish Kumar, saying that he should ask the BJP to amend the Constitution to remove the 50 per cent cap on reservation.

Government’s response

JD(U) chief spokesperson K.C. Tyagi asserted on June 29 that the party would move the Supreme Court against the High Court decision. The next day, Jairam Ramesh, Congress general secretary incharge for communication, said that the Constitution should be amended to remove the 50 per cent cap and States should be given the right to enact laws regarding reservation. “The Congress party demands this cap of 50 per cent should be removed through a parliamentary amendment. Will Nitish Kumar put pressure on the BJP to do this?”

“This is a policy matter that should be decided by the Assembly and Parliament,” said Udit Raj, former MP and president of the Dalit, OBC and Minorities (DOM) Parisangh. “The judgment shows that the Nitish Kumar government could not present the case properly in court. No judgment was made about breaching the 50 per cent reservation cap when the Central government decided on the 10 per cent quota for the Economically Weaker Sections [in the general category]. This judgment needs to be challenged before the Supreme Court.”

Raj, who was a BJP MP before joining the Congress, said that the Assembly should pass the Bill again. “There is no assertion on this count, which means Nitish Kumar is under pressure from the BJP. The NDA has a majority in Parliament. They should find a way through Parliament. The 50 per cent cap has been imposed through court orders. This has to go,” he said.

While the BJP central leadership remained silent on the issue, the party’s State unit chief, Samrat Chaudhary, who is also the Deputy Chief Minister, reiterated the State government’s decision to move the Supreme Court. On July 2, the State government appealed to the Supreme Court against the Patna High Court’s directive.

Prime Minister Narendra Modi and Chief Minister Nitish Kumar during the inauguration of a new campus of Nalanda University on June 19. The Congress has asked Nitish Kumar to ask the BJP to amend the Constitution to remove the 50 per cent cap on reservation. | Photo Credit: PTI

N. Sukumar, Professor, Department of Political Science, University of Delhi, and author of Caste Discrimination and Exclusion in Indian Universities: A Critical Reflection, told Frontline: “The issue of social justice was one of the key concerns on which the mandate of 2024 was based. Nitish Kumar has always been a strong advocate for greater representation for Dalits and EBCs. He has also demanded a special status for Bihar. Now that Nitish is part of the Modi-led NDA, will he have the courage to go against the Patna Court judgment? Instead of acknowledging the reality of the caste census, the court has revealed its own prejudices. A report revealed that 79 per cent of High Court judges are from the upper castes, which reflects the Brahmanical nature of the judiciary.”

Highlights

• The Patna High Court has ruled against the Bihar government’s decision to increase reservation for OBCs, EBCs, SCs, and STs in government jobs and educational institutions. The decision was based on a caste survey initiated in January 2021.
• The court criticised the government’s lack of in-depth study before increasing the reservation percentage, stating that it violated the principles of Articles 15(4) & 16(4) of the Constitution. It cited the judgement in the Indra Sawhney case, imposing a 50 per cent reservation cap.
• The verdict comes at a crucial time for the BJP, which is attempting to secure OBCs and SCs’ support for the upcoming Assembly election. The Congress party has called for the Constitution to be amended to remove the 50 per cent reservation cap.

Sukumar further said that in order to dilute the reservation policy, the Modi government had brought in the EWS category, which was problematic in two ways. One, it disregarded the social and economic backwardness that served as the criteria for reservation. Two, it breached the Supreme Court restrictions as most States had already reached the 50 per cent limit. This made many political parties argue for a caste census so as to get the actual numbers in order to ensure proportional representation/ opportunities. He said that it had come to light that 34 per cent of the population in Bihar earned less than Rs.6,000 a month and that marginalised groups lagged behind the upper castes in all socio-economic indices.

The petitioners argued that the entire edifice of the amendment Act and the increase in reservation percentage was built on the caste survey without much analysis. They also said the Bill was tabled “hastily” in the Assembly on November 9, 2023, two days after the caste-wise socio-economic report was released.

On behalf of the government, the Advocate General argued that the constitutional validity of a law can be challenged only on two grounds: lack of legislative competence, and on infraction of any of the fundamental rights or the provisions of the Constitution. “No arguments were addressed on these two aspects. The present litigation is not with respect to inclusion or exclusion of any caste or community in the reservation net. The reference to the Mandal Commission and the parameters reckoned are not at all relevant since the Mandal Commission was with respect to identification of backward communities. The caste survey has reckoned the entire population within the State of Bihar and assessed their social, educational, and economic status,” he said.

Plea to include reservation law in Ninth Schedule

There has been a long-standing demand from various leaders, including the late Ram Vilas Pawan, for reservation in States to be included in the Ninth Schedule of the Constitution (containing a list of Central and State laws that, until recently, could not be challenged in courts). Chhattisgarh’s former Congress Chief Minister Bhupesh Baghel had written to the Modi government on the same after his government increased the reservation to 76 per cent. A Tamil Nadu law increasing the reservation to 69 per cent was included in the Ninth Schedule in 1994. However, in 2007, the Supreme Court said that even laws under the Ninth Schedule were subject to review.

Immediately after the verdict, RJD leader Tejashwi Yadav alleged that it was no surprise that such a verdict had come within days of the party’s return to power at the Centre since the BJP had tried to scuttle the caste survey. “The RJD will move the Supreme Court against the High Court order if the State government fails to rise to the occasion,” he said.

When the caste survey was carried out, it was seen as a bulwark against the BJP-led NDA, which was in the opposition in the State. Now that the tables have turned, will the JD(U) remains as firm to the cause as it was a year ago?